Patton v. Rey et al
Filing
3
ORDER (1) Granting Plaintiff's Motion to Proceed in Forma Pauperis [ECF No. #2 ]; and (2) Sua Sponte Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). Signed by Judge Cathy Ann Bencivengo on 1/17/2023. (All non-registered users served via U.S. Mail Service)(anh)
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.18 Page 1 of 12
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
SOUTHERN DISTRICT OF CALIFORNIA
7
8
9
ARNOLD PATTON
Inmate No. 20948281,
12
13
14
ORDER:
Plaintiff,
10
11
Case No.: 3:22-cv-02028-CAB-MDD
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS [ECF No. 2];
v.
ANTHONY REY, Interim Sheriff;
SONIA L. MANNING, Facility
Commander; MONTGOMERY, Chief
Medical Officer; COUNTY OF SAN
DIEGO,
15
AND
(2) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)
Defendants.
16
17
18
19
Arnold Patton (“Plaintiff”), currently detained at the Vista Detention Facility
20
(“VDF”) in Vista, California, has filed a civil rights complaint pursuant to 42 U.S.C.
21
§ 1983. See Compl., ECF No. 1. Plaintiff did not pay the filing fee required by 28 U.S.C.
22
§ 1914(a) to commence a civil action when he filed his Complaint; instead, he has filed a
23
Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF
24
No. 2.
25
I.
Motion to Proceed IFP
26
All parties instituting any civil action, suit or proceeding in a district court of the
27
United States, except an application for writ of habeas corpus, must pay a filing fee of
28
1
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.19 Page 2 of 12
1
$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
2
prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
3
§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
4
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
5
proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
6
Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
7
Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.
8
§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
9
Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
10
“certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-
11
month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);
12
Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account
13
statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits
14
in the account for the past six months, or (b) the average monthly balance in the account
15
for the past six months, whichever is greater, unless the prisoner has no assets. See 28
16
U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner
17
then collects subsequent payments, assessed at 20% of the preceding month’s income, in
18
any month in which his account exceeds $10, and forwards those payments to the Court
19
until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
20
Plaintiff has submitted a copy of his San Diego Sheriff’s Department account
21
activity statement. See ECF No. 2 at 6-8. Based on this statement, the Court finds that
22
Plaintiff has had an average monthly balance of $47.92 and an average monthly deposit of
23
$100 for the six months prior to filing this action.
24
25
26
1
27
28
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See
28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
Dec., 2020). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP.
Id.
2
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.20 Page 3 of 12
1
The Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), and assesses
2
an initial partial filing fee of $20.00 pursuant to 28 U.S.C. Section 1915(b)(1)(A). The
3
Court directs the San Diego County Sheriff, or their designee, to collect this initial filing
4
fee only if sufficient funds are available in Plaintiff’s account at the time this Order is
5
executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
6
prohibited from bringing a civil action or appealing a civil action or criminal judgment for
7
the reason that the prisoner has no assets and no means by which to pay the initial partial
8
filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
9
Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case
10
based solely on a “failure to pay . . . due to the lack of funds available to him when payment
11
is ordered.”). The Court further directs the San Diego County Sheriff, or their designee, to
12
collect the remaining balance of the filing fees required by 28 U.S.C. Section 1914 and to
13
forward it to the Clerk of the Court pursuant to the installment payment provisions set forth
14
in 28 U.S.C. Section 1915(b)(1).
15
II.
Screening Pursuant to 28 U.S.C. § 1915(e)(2)
16
A.
17
Because he is proceeding IFP, Plaintiff’s Complaint is also subject to sua sponte
18
review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon
19
which relief may be granted, or seek[s] monetary relief from a defendant immune from
20
such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763
21
(2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if
22
the court determines that—(A) the allegation of poverty is untrue; or (B) the action or
23
appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be
24
granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection
25
1915(e) not only permits, but requires a district court to dismiss an in forma pauperis
26
complaint that fails to state a claim.”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)
27
(per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to
28
prisoners.”).
Standard of Review
3
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.21 Page 4 of 12
1
“The standard for determining whether a plaintiff has failed to state a claim upon
2
which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
3
Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
4
1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
5
2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
6
applied in the context of failure to state a claim under Federal Rule of Civil Procedure
7
12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain
8
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
9
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Plaintiff’s Allegations
10
B.
11
Plaintiff claims to suffer from vision loss in one eye. See Compl. at 3. Plaintiff
12
claims that he has not been “properly treated” and he has “done everything possible to
13
request the proper attention” but the “matter is still not resolved.” Id.
14
In July, Plaintiff suffered a “major attack” while in his cell due to his “severe
15
COPD.” Id. He “asked a deputy if [he] could be taken to medical” but alleges the unnamed
16
deputy did not “take him seriously.” Id. When another staff member came by his cell they
17
notified medical and Plaintiff was taken to the hospital. See id.
18
Finally, Plaintiff claims that there have been “extended periods of lockdown” and a
19
staff shortage has resulted in more time spent in cells. Id. at 4. Plaintiff maintains that this
20
practice can “lead to many mental health problems.” Id. He further claims the staff
21
shortage has resulted in staff becoming “prone to mistakes and mistreatment.” Id.
22
Plaintiff names as Defendants the County of San Diego, the Sheriff of San Diego
23
County Anthony C. Ray, the Chief Medical Officer Montgomery, and the Facility
24
Commander Sonia Manning. See id. at 2. Plaintiff seeks injunctive relief in the form of
25
“proper medical care and preventions of long hours on lockdown,” along with
26
compensatory and punitive damages. Id. at 6.
27
///
28
///
4
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.22 Page 5 of 12
1
C.
2
Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and
3
statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d
4
1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege
5
two essential elements: (1) that a right secured by the Constitution or laws of the United
6
States was violated, and (2) that the alleged violation was committed by a person acting
7
under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d
8
1030, 1035-36 (9th Cir. 2015).
9
D.
42 U.S.C. § 1983
Discussion
10
The principles underlying the Eighth Amendment’s prohibition on the infliction of
11
cruel and unusual punishment “establish the government’s obligation to provide medical
12
care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103
13
(1976). However, “[i]t is obduracy and wantonness, not inadvertence or error in good faith,
14
that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause,
15
whether that conduct occurs in connection with establishing conditions of confinement,
16
supplying medical needs, or restoring official control over a tumultuous cellblock.”
17
Whitley v. Albers, 475 U.S. 312, 319 (1986). “[A]n inadvertent failure to provide adequate
18
medical care,” allegations that “a physician has been negligent in diagnosing or treating a
19
medical condition,” or “medical malpractice” do not state an Eighth Amendment claim.
20
Estelle, 429 U.S. at 105-06 (“Medical malpractice does not become a constitutional
21
violation merely because the victim is a prisoner.”)
22
“[A] prison official violates the Eighth Amendment only when two requirements are
23
met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.
24
Brennan, 511 U.S. 825, 834 (1994), quoting Wilson, 501 U.S. at 298. “Although routine
25
discomfort inherent in the prison setting is inadequate to satisfy the objective prong of an
26
Eighth Amendment inquiry, ‘those deprivations denying “the minimal civilized measure
27
of life’s necessities” are sufficiently grave to form the basis of an Eighth Amendment
28
violation.’” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), quoting Wilson v. Seiter,
5
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.23 Page 6 of 12
1
501 U.S. 294, 298 (1991) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
2
Second, “a prison official must have a ‘sufficiently culpable state of mind,’” that is,
3
“one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834,
4
quoting Wilson, 501 U.S. at 302-03. The deliberate indifference prong of an Eighth
5
Amendment violation “is satisfied by showing (a) a purposeful act or failure to respond to
6
a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett
7
v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “[T]he prison official must not only ‘be
8
aware of the facts from which the inference could be drawn that a substantial risk of serious
9
harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d
10
1051, 1057 (9th Cir. 2004), quoting Farmer, 511 U.S. at 837.
11
It appears that the claims in Plaintiff’s Complaint detail events that occurred while
12
he was a pre-trial detainee. As a pre-trial detainee, an objective test for deliberate
13
indifference under the Due Process Clause of the Fourteenth Amendment is applied rather
14
than a subjective test under the Cruel and Unusual Punishments Clause of the Eighth
15
Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting that the Due
16
Process Clause of the Fourteenth Amendment is applicable to claims of pre-trial detainees
17
rather than the Eighth Amendment because “Eighth Amendment scrutiny is appropriate
18
only after the State has complied with the constitutional guarantees traditionally associated
19
with criminal prosecutions.”) Under the objective reasonableness standard, Plaintiff must
20
“prove more than negligence but less than subjective intent - something akin to reckless
21
disregard.” Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). To state a
22
42 U.S.C. § 1983 claim for inadequate medical care or unconstitutional conditions of
23
confinement, a pre-trial detainee must plausibly allege that: “(i) the defendant made an
24
intentional decision with respect to the conditions under which the plaintiff was confined;
25
(ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the
26
defendant did not take reasonable available measures to abate that risk, even though a
27
reasonable official in the circumstances would have appreciated the high degree of risk
28
involved - making the consequences of the defendant’s conduct obvious; and (iv) by not
6
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.24 Page 7 of 12
1
2
taking such measures, the defendant caused plaintiff’s injuries.” Id.
1. County of San Diego
3
In order to state a claim against Defendant County of San Diego, Plaintiff must allege
4
that: (1) he was deprived of a constitutional right, (2) the County has a policy, custom or
5
practice which amounted to deliberate indifference to that constitutional right; and (3) the
6
policy, custom or practice was the moving force behind the constitutional violation.
7
Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011), citing Monell v.
8
Department of Social Services, 436 U.S. 658, 694 (1978) (“We conclude, therefore, that a
9
local government may not be sued under § 1983 for an injury inflicted solely by its
10
employees or agents. Instead, it is when execution of a government’s policy or custom,
11
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
12
represent official policy, inflicts the injury that the government as an entity is responsible
13
under § 1983.”) Municipal liability may be shown when an employee who committed the
14
constitutional violation was “acting pursuant to an expressly adopted official policy,
15
longstanding practice or custom, or as a final policymaker.”
16
Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014), citing Monell, 436 U.S. at 694. Municipal
17
liability arising from an alleged failure to train jail staff requires allegations “that ‘the need
18
for more or different training is so obvious, and the inadequacy so likely to result in the
19
violation of constitutional rights, that the policymakers of the city can reasonably be said
20
to have been deliberately indifferent to the need.’” Rodriguez v. City of Los Angeles, 891
21
F.3d 776, 802 (9th Cir. 2018), quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989).
22
Plaintiff’s allegation that inadequate medical care for his vision problems or the
23
delay in response to his request for treatment for his COPD, by themselves, fails to state a
24
municipal liability claim because “proof of a single incident of unconstitutional activity,”
25
or even a series of “isolated or sporadic incidents” will not give rise to § 1983 municipal
26
liability. Grant v. County of Los Angeles, 772 F.3d 608, 618 (9th Cir. 1996); Monell, 436
27
U.S. at 691 (for an unwritten policy or custom to form the basis of a claim, it must be so
28
“persistent and widespread” that it constitutes a “permanent and well settled” practice).
Thomas v. County of
7
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.25 Page 8 of 12
1
Rather, liability based on custom, practice or policy “must be founded upon practices of
2
sufficient duration, frequency and consistency that the conduct has become a traditional
3
method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Facts
4
regarding the specific nature of the policy, custom or practice are required, as merely
5
stating the subject to which the policy relates, such as medical care, is insufficient. See
6
Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (a complaint with
7
conclusory allegation of a municipal policy fails to state a claim where it does not “put
8
forth additional facts regarding the specific nature of this alleged policy, custom or
9
practice.”)
10
In addition, Plaintiff has alleged that systemic operational deficiencies caused by
11
understaffing have resulted in the conditions of confinement listed in the Complaint, but
12
other than the vague allegations relating to his vision care and the one incident that his
13
COPD treatment was delayed, he has not set forth any factual allegations regarding how
14
those alleged systemic operational deficiencies have affected him. If Plaintiff wishes to
15
proceed with a claim against the County of San Diego, he must set forth factual allegations
16
which identify a San Diego County custom, policy or practice and plausibly allege a “direct
17
causal link between a municipal policy or custom and the alleged constitutional
18
deprivation.” Collins v. County of Harker Heights, 503 U.S. 115, 123 (1992); Connick v.
19
Thompson, 563 U.S. 51, 60 (2011) (in order to impose liability on a local government under
20
§ 1983 a plaintiff must plead and prove that an “action pursuant to official municipal
21
policy” caused their injury.) Otherwise, he must allege a failure to train or that an
22
“individual who committed the constitutional tort was an official with final policy-making
23
authority or such an official ratified a subordinate’s unconstitutional decision or action and
24
the basis for it.” Rodriguez, 891 F.3d at 802-03. Even assuming the allegations of systemic
25
failures are sufficient to allege a custom or policy of the County of San Diego, Plaintiff has
26
not plausibly alleged that custom or policy has resulted in deliberate indifference because
27
he has not identified any effect on him, other than a single instance of delay in medical care
28
for his COPD and unspecified inadequate treatment for his vision problem, which does not
8
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.26 Page 9 of 12
1
plausibly allege a violation of the Eighth or Fourteenth Amendment. See Grant, 772 F.3d
2
at 618 (“proof of a single incident of unconstitutional activity,” or even a series of “isolated
3
or sporadic incidents” will not give rise to § 1983 municipal liability); Monell, 436 U.S. at
4
691 (for an unwritten policy or custom to form the basis of a claim, it must be so “persistent
5
and widespread” that it constitutes a “permanent and well settled” practice).
6
2. Individual Defendants
7
Plaintiff names as the remaining Defendants the Sheriff of San Diego County, the
8
Chief Medical Director, and the Facility Commander. Plaintiff does not allege any specific
9
factual allegations as to any of these named Defendants. In order to state a claim under 42
10
U.S.C. § 1983 against these Defendants, Plaintiff must allege facts sufficient to show that
11
each Defendant individually participated in causing a constitutional violation.
12
plaintiff must plead that each Government official defendant, through the official’s own
13
individual actions, has violated the constitution.” Iqbal, 556 U.S. at 676-77 (rejecting
14
argument that “a supervisor’s mere knowledge of his subordinate’s [unconstitutional
15
actions] amounts to the supervisor’s violating the Constitution.”) “A supervisory official
16
may be held liable under § 1983 only if ‘there exists either (1) his or her personal
17
involvement in the constitutional violation, or (2) a sufficient causal connection between
18
the supervisor’s wrongful conduct and the constitutional violation.’” Keates v. Koile, 883
19
F.3d 1228, 1242-43 (9th Cir. 2018), quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.
20
2011). “In a section 1983 claim, a supervisor is liable for the acts of his subordinates if the
21
supervisor participated in or directed the violations, or knew of the violations of
22
subordinates and failed to act to prevent them.” Corales v. Bennett, 567 F.3d 554, 570 (9th
23
Cir. 2009) (internal quote marks omitted).
“[A]
24
Plaintiff must set forth factual allegations identifying individual acts or omissions
25
by each person related to his medical treatment or conditions of confinement which resulted
26
in a constitutional violation. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The
27
inquiry into causation must be individualized and focus on the duties and responsibilities
28
of each individual defendant whose acts or omissions are alleged to have caused a
9
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.27 Page 10 of 12
1
constitutional deprivation.”); Gordon, 888 F.3d at 1125 (in order to state a § 1983 claim
2
for inadequate medical care or unconstitutional conditions of confinement a pre-trial
3
detainee must plausibly allege that: “(i) the defendant made an intentional decision with
4
respect to the conditions under which the plaintiff was confined; (ii) those conditions put
5
the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take
6
reasonable available measures to abate that risk, even though a reasonable official in the
7
circumstances would have appreciated the high degree of risk involved - making the
8
consequences of the defendant’s conduct obvious; and (iv) by not taking such measures,
9
the defendant caused plaintiff’s injuries.”) Plaintiff does not identify any individual
10
Defendant who knew of and deliberately ignored his need for treatment. Although Plaintiff
11
states he submitted requests for treatment regarding the delay as to his vision care and an
12
unnamed deputy did not take his medical claims seriously, there are no factual allegations
13
regarding who those requests were directed to or any other facts which plausibly allege any
14
individual Defendant was aware of his need for treatment. In addition, allegations of
15
differences of opinion over proper medical care, inadequate medical treatment, medical
16
malpractice, or even gross negligence by themselves do not rise to the level of an Eighth
17
or Fourteenth Amendment violation. See Farmer, 511 U.S. at 835 (“[N]egligen(ce) in
18
diagnosing or treating a medical condition” does not amount to deliberate indifference),
19
quoting Estelle, 429 U.S. at 105-06 (holding that “an inadvertent failure to provide medical
20
care,” allegations that “a physician has been negligent in diagnosing or treating a medical
21
condition,” or “medical malpractice” do not state an Eighth Amendment claim as
22
“[m]edical malpractice does not become a constitutional violation merely because the
23
victim is a prisoner.”); Toguchi, 391 F.3d at 1058 (a disagreement over the necessity or
24
extent of medical treatment does not show deliberate indifference); Gordon, 888 F.3d at
25
1124-25 (a pre-trial detainee must show more than lack of due care or negligence).
26
If Plaintiff wishes to proceed with his claims against any individual Defendant, he
27
must provide facts which plausibly allege they “made an intentional decision with respect
28
to the conditions under which” he was confined, which placed him “at substantial risk of
10
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.28 Page 11 of 12
1
suffering serious harm,” and caused his injuries by failing to “take reasonable available
2
measures to abate that risk, even though a reasonable official in the circumstances would
3
have appreciated the high degree of risk involved.” Gordon, 888 F.3d at 1125.
4
5
Accordingly, the Court sua sponte dismisses the Complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2).
6
E.
7
In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading
8
to attempt to sufficiently allege a § 1983 claim if he can and if he wishes to attempt to do
9
so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should
10
not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)]
11
unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by
12
amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
13
III.
Leave to Amend
Conclusion and Order
14
For the reasons explained, the Court:
15
1.
16
17
GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(ECF No. 2).
3.
DIRECTS the Watch Commander VDF, or their designee, to collect from
18
Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing monthly
19
payments in an amount equal to twenty percent (20%) of the preceding month’s income
20
and forwarding those payments to the Clerk of the Court each time the amount in the
21
account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE
22
CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
23
ACTION.
24
25
26
4.
DIRECTS the Clerk of the Court to serve a copy of this Order on Watch
Commander, Vista Detention Facility, 325 South Melrose Drive, Vista, California 92081.
5.
DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
27
relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and
28
GRANTS him thirty (30) days leave from the date of this Order in which to file an
11
3:22-cv-02028-CAB-MDD
Case 3:22-cv-02028-CAB-MDD Document 3 Filed 01/17/23 PageID.29 Page 12 of 12
1
Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s
2
Amended Complaint must be complete by itself without reference to his original pleading.
3
Defendants not named and any claim not re-alleged in his Amended Complaint will be
4
considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
5
& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
6
original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
7
dismissed with leave to amend which are not re-alleged in an amended pleading may be
8
“considered waived if not repled.”).
9
10
11
12
6.
The Clerk of Court is directed to mail Plaintiff a court approved civil rights
complaint form for his use in amending.
IT IS SO ORDERED.
Dated: January 17, 2023
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
3:22-cv-02028-CAB-MDD
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?